* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CHARLES R. POWELL,

Plaintiff-Appellant,

v. UNITED STATES POSTAL SERVICE, and WILLIAM J. HENDERSON, Postmaster General,

Defendants-Appellees. No. 98-2178 (D.C. No. CIV-97-721-M) (D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

Plaintiff Charles R. Powell appeals from an order o f the district court granting defendant s’ motion for summary judgment in this action broug ht pursuant to Title VII, 42 U.S.C. §§ 2000e-2000e-17. 1 We reverse and remand.2

Mr. Powell originally filed charges of race and age discrimination and retaliation with the EEOC in 1993. An administrative law judge determined that defendants had not discriminated against Mr. Powell, but reco mmended a finding of retaliation. In 1995, Mr. Powell commenced an a ction in federal district court to enforce the EEOC determination. The parties ent ered into a settlement agreement in 1996 which was signed by Mr. Powell an d his attorney. Mr. Powell then withdrew his suit. The agreement provided that Mr. Powell would be promoted retroactively to 1993, would receive (1) b ack pay, including shift differential and any other pay increases, due betwe en 1993 and 1996; (2) interest on those unpaid wages; (3) calculated overtime; (4) credit for used sick leave; and (5) $15,000.00 in compensatory damages, as well as attorney’s fees . The agreement also stated that defendants would not retaliate against Mr. Powell in any manner for filing his EEOC action, the 1995 civ il action seeking enforcement of the agency’s determination, or for signing the a greement. After the agreement was signed, Mr. Powell conteste d his scheduled days off, an issue which had not been made a part of the settlement agreement. Defendants had originally scheduled him to have con secutive days off during the week. Mr. Powell preferred to be off on weekends. Defendants then scheduled Mr. Powell with Saturday and Monday off, as had bee n stated in a letter sent by defendants during the settlement negotiations. See Rec., tab 19, Ex. 6 & Ex. B3

at 2. Over a year later, Mr. Powell argued that defendants had made a mistake in that letter and had actually accepted his proposal of Friday and Saturday as days off. See id. tab. 20, enc. K. In 1998, Mr. Powell commenced this action in district court. Mr. Powell claimed defendants were discriminating against him on the basis of ra ce and were retaliating against him as evidenced by his assignm ent of days off. The district court held that Mr. Powell had failed to make a pri ma facie case of discrimination or retaliation as he had instigated all changes in his schedule. Further, consecutive days off were not a part of the negotiated terms of the settlement agreement. We review the district court’s ruling on a motion f or summary judgment de novo, examining “the record to determine whether any genuine issue of material fact was in dispute” and if “the substantive law was applied correctly.” McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998) (quotation omitted). The plaintiff in a Title VII case “bears the initia l burden of setting forth a prima facie case of discrimination.” Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 531 (10th Cir. 19 98). Tailoring the McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973) scheme to fit the facts of this disparate treatmentcase, Mr. Powell can establish a prima facie case of disc rimination by showing that as a4

member of a protected class, he suffered an adverse employment action and similarly situated nonminority employees were not s ubjected to the same action he was. Cf. EEOC v. Flasher Co. , 986 F.2d 1312, 1316 (10th Cir. 1992). To establish a prima facie case of retaliation, Mr. Powell must show: 1) he had opposed Title VII discrimination; 2) he suffere d an adverse employment action; and 3) a causal connection exists between h is protected Title VII activity and the adverse employment action. See Gunnell v. Utah Valley State College , 152 F.3d 1253, 1262-63 (10th Cir. 19 98). “The burden of persuading the factfinder that the defendant intentionally discrim inated remains at all times with the plaintiff . . . and the plaintiff must prove th at the defendant’s action was intentionally retaliatory.” Id. at 1263 . Mr. Powell was originally assigned consecutive days off during the week. He objected to having his days off scheduled mid-we ek and requested weekends off instead. Only after he specifically requested weekends off was he given nonconsecutive days off as originally proposed by defendants . Mr. Powell had not objected when these days were first proposed. Under these facts, Mr. Powell did not made a prima facie case of discrimination o r retaliation concerning the manner in which the settlement agreement was execut ed. However, Mr. Powell has submitted a letter to this court that appears to be defendants’ response to his renewed request for consecutive we ekend days off.2 We note that this letter was sent after the distric t court entered judgment in

the pending action and while Mr. Powell’s appeal wa s pending before this court. 5 Defendants denied the request stating that “until y our pending lawsuit is settled this change [is] not possible.” Letter of November 6, 1998. 2This response, considered along with the other evidence of record, raises concerns that defendants may now be retaliating against Mr. Powell. We note that defendants have previously been found to have retaliated again st Mr. Powell and were unwilling to settle that claim. See Rec. tab. 20, enc. E. (correspondence from magistrate judge noting that defendants were “unwilling to enter into a reasonable settlement” after the agency had found retaliation and that defendant s’ position was “very difficult to understand in light of the r ather clear liability in this cause”) . Mr. Powell has also stated that he is the only Black American working in the Albuquerque Human Resources department, is the only person who has filed an EEOC complaint, and is the only person working in his position who has nonconsecutive days off. Retaliatory motive can be shown by “protected condu ct closely followed by adverse action.” Burrus v. United Tel. Co. of Kan., Inc. , 683 F.2d 339, 343 (10th Cir. 1982). It appears that Mr. Powell may be able to make the required showing here. Therefore, in the interests of justice, we must remand this case to permit the district court to determine whether Mr. Powell has sufficient evidence to present a6

prima facie case that defendants are retaliating against him for bringing this current action. Should the district court determin e that Mr. Powell can present such a prima facie case, defendants must then articulate a legitimate business reason to show a nondiscriminatory motive for refus ing to reconsider Mr. Powell’s schedule while this suit is pending. The district court’s judgment is REVERSED and this case is REMANDED for further proceedings in accordance with this ord er and judgment. Mr. Powell’s motion to supplement the record is GRANTED insofar as we recognize that Mr. Powell has additional evidence that should be consi dered by the district court. SeeAero-Medical, Inc. v. United States , 23 F.3d 328, 329 n.2 (10th Cir. 1994). The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge